The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts...

34
The EFTA Court in it’s 24 th Year First Judicial Summit of the EFTA Pillar, 2 May 2017 Carl Baudenbacher President of the EFTA Court

Transcript of The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts...

Page 1: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

The EFTA Court in itrsquos 24th Year

First Judicial Summit of the EFTA Pillar 2 May 2017

Carl Baudenbacher President of the EFTA Court

A Introduction

B Structure and case load

C Important cases

D Backbones of the EEA Agreement

E Judicial style and underlying philosophy

A Introduction

Today is 2 May 2017

On 2 May 1992 the EEA Agreement and the Surveillance and Court Agreement were signed in Oporto

Knut Almestad The EFTA Court and the EFTA Surveillance Authority are rdquothe quintessence of the EEA Agreementrdquo

But the national courts and in particular the Supreme Courts are of equal importance

A Introduction

A Introduction

The past 25 years have seen

Four American presidents

The emergence of the internet

Paul Krugman The Internetrsquo s impact on the economy will been no greater than the fax machinersquos

Jerzy Buzek Polish Prime Minister (1997-2001) and President of the European Parliament (2009-12)

ldquoIn the 20th Century each quarter-century ndash 1914 1939 1968 1989 ndash brought Europe to an unpredictable turning pointrdquo

A Introduction

Could anyone have imagined in 1992 that the EEA would still be there in 2017

B Structure and case load

From 7 to 5 to 3 Judges

Since mid-1995 a court of three

lsquoTres faciunt collegiumrsquo (Digest of Justinian)

Minimum number need to operate a court

Compare US Federal Appellate Courts

Compare WTO Appellate Body

Cabinet system (as opposed to a pool system)

Registry

B Structure and case load

285 cases so far

Direct actions 165

References by national courts 120

B Structure and case load

Uncontested infringement cases 77

Contested infringement cases 24

Other direct actions 64

References by Icelandic courts 34

References by Liechtenstein courts 25

References by Norwegian courts 56

Other 5

C Important cases

EFTA Statesrsquo liability for legislative administrative and judicial wrongdoing

Recognition of EEA fundamental rights and of other general principles of EEA law

Modalities of the infringement procedure and the preliminary reference procedure

State monopolies for alcoholic beverages tobacco and gambling

Norwegian advertising ban for alcoholic beverages and Norwegian display ban for tobacco products

C Important cases

Liechtenstein residence requirements

Norwegian reversion system for waterfalls

Transfrontier television

Succession of contracts under the transfer of undertaking rules

Taking a ride with an intoxicated driver

Recognition of the precautionary principle in food law

Taxation of dividends

C Important cases

Relationship between competition law and collective bargainingindustrial action

Repackaging of pharmaceuticals

Compatibility with State aid rules of tax privileges for certain economic actors and State guarantees for publicly owned banks

Sophisticated website as a ldquodurable mediumrdquo

Relevance of ECtHR case law in EEA competition law cases

C Important cases

Public access to documents of ESA (for private parties seeking damages)

Security of costs

Legal consequences of the downfall of the Icelandic banks in 2008

In particular Icesave I

Right of residence and EU Citizenship Directive in an EEA law context

C Important cases

Trade in second-hand life insurance policies

Limits of the application of national CFC rules

Application of EEA competition rules to public bodies

Restriction of competition by object

Application for trade mark protection after the expiry of copyright

D Backbones of the EEA Agreement

I Homogeneity

Law on the books One way street (E-115 Restamark)

Law in action Going first and judicial dialogue

EEA Agreement as a ldquoliving instrumentrdquo

Vassilios Skouris in 2014

Symbiotic relationship marked by mutual respect and dialogue which has allowed the flow of information in both directions

D Backbones of the EEA Agreement

I Homogeneity

References by AGs GC and ECJ to EFTA Court case law in 126 cases

In 75 cases AGs

In 28 cases ECJ

In 23 cases GC

In total 233 citations by AGs GC and ECJ

D Backbones of the EEA Agreement

I Homogeneity

In 32 cases reference to opinions of AGs by the Court

D Backbones of the EEA Agreement

I Homogeneity

Only court of general jurisdiction whose case law is regularly cited by the ECJ in the context of EU law

References by high courts in Germany the UK Sweden the Netherlands Switzerland Austria

D Backbones of the EEA Agreement

I Homogeneity

Homogeneity as a process not as a snapshot in time (Philipp Speitler Hans Petter Graver)

Former Commission DG and WTO AB Chairman Claus Ehlermann

Healthy (regulatory) competition

But We do not wilfully deviate

D Backbones of the EEA Agreement

I Homogeneity

The role of the ECHR and of the ECtHR

In 11 cases the Court has referred to ECtHR case law (for the first time in 1998)

18 citations

In one case the ECtHR has referred to the Courtrsquos case law (ALIŠIĆ AND OTHERS v BOSNIA AND HERZEGOVINA CROATIA SERBIA SLOVENIA AND THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA Application no 6064208 paragraphs 70-73 94 118)

D Backbones of the EEA Agreement

II Reciprocity

Trade law concept but that is not all

Internal effect of EEA law (no direct effect and no primacy but obligation of result State liability conform interpretation)

Access to justice (preliminary reference procedure)

Independence of judges (Article 30 SCA Order of the President of 20217 in E-2116 Nobile)

Independence of ESA College Members

E Judicial style and underlying philosophy

I General

EFTA Court is an own court of the EFTA States

Matter of sovereignty

Own judges know the legal economic social historic and cultural characteristics of their countries

Independent court (recital 15 preamble EEA Article 106 EEA)

No court of lower instance

Judging is no exact science

E Judicial style and underlying philosophy

II Reasoning (i)

No ldquodecreeingrdquo (size judicial constitution of the EFTA pillar)

No AG

Fact-based approach Court not driven by a grand vision

Dealing with all the arguments

Need to create acceptance

Comprehensive but succinct judgments is the goal

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 2: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

A Introduction

B Structure and case load

C Important cases

D Backbones of the EEA Agreement

E Judicial style and underlying philosophy

A Introduction

Today is 2 May 2017

On 2 May 1992 the EEA Agreement and the Surveillance and Court Agreement were signed in Oporto

Knut Almestad The EFTA Court and the EFTA Surveillance Authority are rdquothe quintessence of the EEA Agreementrdquo

But the national courts and in particular the Supreme Courts are of equal importance

A Introduction

A Introduction

The past 25 years have seen

Four American presidents

The emergence of the internet

Paul Krugman The Internetrsquo s impact on the economy will been no greater than the fax machinersquos

Jerzy Buzek Polish Prime Minister (1997-2001) and President of the European Parliament (2009-12)

ldquoIn the 20th Century each quarter-century ndash 1914 1939 1968 1989 ndash brought Europe to an unpredictable turning pointrdquo

A Introduction

Could anyone have imagined in 1992 that the EEA would still be there in 2017

B Structure and case load

From 7 to 5 to 3 Judges

Since mid-1995 a court of three

lsquoTres faciunt collegiumrsquo (Digest of Justinian)

Minimum number need to operate a court

Compare US Federal Appellate Courts

Compare WTO Appellate Body

Cabinet system (as opposed to a pool system)

Registry

B Structure and case load

285 cases so far

Direct actions 165

References by national courts 120

B Structure and case load

Uncontested infringement cases 77

Contested infringement cases 24

Other direct actions 64

References by Icelandic courts 34

References by Liechtenstein courts 25

References by Norwegian courts 56

Other 5

C Important cases

EFTA Statesrsquo liability for legislative administrative and judicial wrongdoing

Recognition of EEA fundamental rights and of other general principles of EEA law

Modalities of the infringement procedure and the preliminary reference procedure

State monopolies for alcoholic beverages tobacco and gambling

Norwegian advertising ban for alcoholic beverages and Norwegian display ban for tobacco products

C Important cases

Liechtenstein residence requirements

Norwegian reversion system for waterfalls

Transfrontier television

Succession of contracts under the transfer of undertaking rules

Taking a ride with an intoxicated driver

Recognition of the precautionary principle in food law

Taxation of dividends

C Important cases

Relationship between competition law and collective bargainingindustrial action

Repackaging of pharmaceuticals

Compatibility with State aid rules of tax privileges for certain economic actors and State guarantees for publicly owned banks

Sophisticated website as a ldquodurable mediumrdquo

Relevance of ECtHR case law in EEA competition law cases

C Important cases

Public access to documents of ESA (for private parties seeking damages)

Security of costs

Legal consequences of the downfall of the Icelandic banks in 2008

In particular Icesave I

Right of residence and EU Citizenship Directive in an EEA law context

C Important cases

Trade in second-hand life insurance policies

Limits of the application of national CFC rules

Application of EEA competition rules to public bodies

Restriction of competition by object

Application for trade mark protection after the expiry of copyright

D Backbones of the EEA Agreement

I Homogeneity

Law on the books One way street (E-115 Restamark)

Law in action Going first and judicial dialogue

EEA Agreement as a ldquoliving instrumentrdquo

Vassilios Skouris in 2014

Symbiotic relationship marked by mutual respect and dialogue which has allowed the flow of information in both directions

D Backbones of the EEA Agreement

I Homogeneity

References by AGs GC and ECJ to EFTA Court case law in 126 cases

In 75 cases AGs

In 28 cases ECJ

In 23 cases GC

In total 233 citations by AGs GC and ECJ

D Backbones of the EEA Agreement

I Homogeneity

In 32 cases reference to opinions of AGs by the Court

D Backbones of the EEA Agreement

I Homogeneity

Only court of general jurisdiction whose case law is regularly cited by the ECJ in the context of EU law

References by high courts in Germany the UK Sweden the Netherlands Switzerland Austria

D Backbones of the EEA Agreement

I Homogeneity

Homogeneity as a process not as a snapshot in time (Philipp Speitler Hans Petter Graver)

Former Commission DG and WTO AB Chairman Claus Ehlermann

Healthy (regulatory) competition

But We do not wilfully deviate

D Backbones of the EEA Agreement

I Homogeneity

The role of the ECHR and of the ECtHR

In 11 cases the Court has referred to ECtHR case law (for the first time in 1998)

18 citations

In one case the ECtHR has referred to the Courtrsquos case law (ALIŠIĆ AND OTHERS v BOSNIA AND HERZEGOVINA CROATIA SERBIA SLOVENIA AND THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA Application no 6064208 paragraphs 70-73 94 118)

D Backbones of the EEA Agreement

II Reciprocity

Trade law concept but that is not all

Internal effect of EEA law (no direct effect and no primacy but obligation of result State liability conform interpretation)

Access to justice (preliminary reference procedure)

Independence of judges (Article 30 SCA Order of the President of 20217 in E-2116 Nobile)

Independence of ESA College Members

E Judicial style and underlying philosophy

I General

EFTA Court is an own court of the EFTA States

Matter of sovereignty

Own judges know the legal economic social historic and cultural characteristics of their countries

Independent court (recital 15 preamble EEA Article 106 EEA)

No court of lower instance

Judging is no exact science

E Judicial style and underlying philosophy

II Reasoning (i)

No ldquodecreeingrdquo (size judicial constitution of the EFTA pillar)

No AG

Fact-based approach Court not driven by a grand vision

Dealing with all the arguments

Need to create acceptance

Comprehensive but succinct judgments is the goal

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 3: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

A Introduction

Today is 2 May 2017

On 2 May 1992 the EEA Agreement and the Surveillance and Court Agreement were signed in Oporto

Knut Almestad The EFTA Court and the EFTA Surveillance Authority are rdquothe quintessence of the EEA Agreementrdquo

But the national courts and in particular the Supreme Courts are of equal importance

A Introduction

A Introduction

The past 25 years have seen

Four American presidents

The emergence of the internet

Paul Krugman The Internetrsquo s impact on the economy will been no greater than the fax machinersquos

Jerzy Buzek Polish Prime Minister (1997-2001) and President of the European Parliament (2009-12)

ldquoIn the 20th Century each quarter-century ndash 1914 1939 1968 1989 ndash brought Europe to an unpredictable turning pointrdquo

A Introduction

Could anyone have imagined in 1992 that the EEA would still be there in 2017

B Structure and case load

From 7 to 5 to 3 Judges

Since mid-1995 a court of three

lsquoTres faciunt collegiumrsquo (Digest of Justinian)

Minimum number need to operate a court

Compare US Federal Appellate Courts

Compare WTO Appellate Body

Cabinet system (as opposed to a pool system)

Registry

B Structure and case load

285 cases so far

Direct actions 165

References by national courts 120

B Structure and case load

Uncontested infringement cases 77

Contested infringement cases 24

Other direct actions 64

References by Icelandic courts 34

References by Liechtenstein courts 25

References by Norwegian courts 56

Other 5

C Important cases

EFTA Statesrsquo liability for legislative administrative and judicial wrongdoing

Recognition of EEA fundamental rights and of other general principles of EEA law

Modalities of the infringement procedure and the preliminary reference procedure

State monopolies for alcoholic beverages tobacco and gambling

Norwegian advertising ban for alcoholic beverages and Norwegian display ban for tobacco products

C Important cases

Liechtenstein residence requirements

Norwegian reversion system for waterfalls

Transfrontier television

Succession of contracts under the transfer of undertaking rules

Taking a ride with an intoxicated driver

Recognition of the precautionary principle in food law

Taxation of dividends

C Important cases

Relationship between competition law and collective bargainingindustrial action

Repackaging of pharmaceuticals

Compatibility with State aid rules of tax privileges for certain economic actors and State guarantees for publicly owned banks

Sophisticated website as a ldquodurable mediumrdquo

Relevance of ECtHR case law in EEA competition law cases

C Important cases

Public access to documents of ESA (for private parties seeking damages)

Security of costs

Legal consequences of the downfall of the Icelandic banks in 2008

In particular Icesave I

Right of residence and EU Citizenship Directive in an EEA law context

C Important cases

Trade in second-hand life insurance policies

Limits of the application of national CFC rules

Application of EEA competition rules to public bodies

Restriction of competition by object

Application for trade mark protection after the expiry of copyright

D Backbones of the EEA Agreement

I Homogeneity

Law on the books One way street (E-115 Restamark)

Law in action Going first and judicial dialogue

EEA Agreement as a ldquoliving instrumentrdquo

Vassilios Skouris in 2014

Symbiotic relationship marked by mutual respect and dialogue which has allowed the flow of information in both directions

D Backbones of the EEA Agreement

I Homogeneity

References by AGs GC and ECJ to EFTA Court case law in 126 cases

In 75 cases AGs

In 28 cases ECJ

In 23 cases GC

In total 233 citations by AGs GC and ECJ

D Backbones of the EEA Agreement

I Homogeneity

In 32 cases reference to opinions of AGs by the Court

D Backbones of the EEA Agreement

I Homogeneity

Only court of general jurisdiction whose case law is regularly cited by the ECJ in the context of EU law

References by high courts in Germany the UK Sweden the Netherlands Switzerland Austria

D Backbones of the EEA Agreement

I Homogeneity

Homogeneity as a process not as a snapshot in time (Philipp Speitler Hans Petter Graver)

Former Commission DG and WTO AB Chairman Claus Ehlermann

Healthy (regulatory) competition

But We do not wilfully deviate

D Backbones of the EEA Agreement

I Homogeneity

The role of the ECHR and of the ECtHR

In 11 cases the Court has referred to ECtHR case law (for the first time in 1998)

18 citations

In one case the ECtHR has referred to the Courtrsquos case law (ALIŠIĆ AND OTHERS v BOSNIA AND HERZEGOVINA CROATIA SERBIA SLOVENIA AND THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA Application no 6064208 paragraphs 70-73 94 118)

D Backbones of the EEA Agreement

II Reciprocity

Trade law concept but that is not all

Internal effect of EEA law (no direct effect and no primacy but obligation of result State liability conform interpretation)

Access to justice (preliminary reference procedure)

Independence of judges (Article 30 SCA Order of the President of 20217 in E-2116 Nobile)

Independence of ESA College Members

E Judicial style and underlying philosophy

I General

EFTA Court is an own court of the EFTA States

Matter of sovereignty

Own judges know the legal economic social historic and cultural characteristics of their countries

Independent court (recital 15 preamble EEA Article 106 EEA)

No court of lower instance

Judging is no exact science

E Judicial style and underlying philosophy

II Reasoning (i)

No ldquodecreeingrdquo (size judicial constitution of the EFTA pillar)

No AG

Fact-based approach Court not driven by a grand vision

Dealing with all the arguments

Need to create acceptance

Comprehensive but succinct judgments is the goal

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 4: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

A Introduction

A Introduction

The past 25 years have seen

Four American presidents

The emergence of the internet

Paul Krugman The Internetrsquo s impact on the economy will been no greater than the fax machinersquos

Jerzy Buzek Polish Prime Minister (1997-2001) and President of the European Parliament (2009-12)

ldquoIn the 20th Century each quarter-century ndash 1914 1939 1968 1989 ndash brought Europe to an unpredictable turning pointrdquo

A Introduction

Could anyone have imagined in 1992 that the EEA would still be there in 2017

B Structure and case load

From 7 to 5 to 3 Judges

Since mid-1995 a court of three

lsquoTres faciunt collegiumrsquo (Digest of Justinian)

Minimum number need to operate a court

Compare US Federal Appellate Courts

Compare WTO Appellate Body

Cabinet system (as opposed to a pool system)

Registry

B Structure and case load

285 cases so far

Direct actions 165

References by national courts 120

B Structure and case load

Uncontested infringement cases 77

Contested infringement cases 24

Other direct actions 64

References by Icelandic courts 34

References by Liechtenstein courts 25

References by Norwegian courts 56

Other 5

C Important cases

EFTA Statesrsquo liability for legislative administrative and judicial wrongdoing

Recognition of EEA fundamental rights and of other general principles of EEA law

Modalities of the infringement procedure and the preliminary reference procedure

State monopolies for alcoholic beverages tobacco and gambling

Norwegian advertising ban for alcoholic beverages and Norwegian display ban for tobacco products

C Important cases

Liechtenstein residence requirements

Norwegian reversion system for waterfalls

Transfrontier television

Succession of contracts under the transfer of undertaking rules

Taking a ride with an intoxicated driver

Recognition of the precautionary principle in food law

Taxation of dividends

C Important cases

Relationship between competition law and collective bargainingindustrial action

Repackaging of pharmaceuticals

Compatibility with State aid rules of tax privileges for certain economic actors and State guarantees for publicly owned banks

Sophisticated website as a ldquodurable mediumrdquo

Relevance of ECtHR case law in EEA competition law cases

C Important cases

Public access to documents of ESA (for private parties seeking damages)

Security of costs

Legal consequences of the downfall of the Icelandic banks in 2008

In particular Icesave I

Right of residence and EU Citizenship Directive in an EEA law context

C Important cases

Trade in second-hand life insurance policies

Limits of the application of national CFC rules

Application of EEA competition rules to public bodies

Restriction of competition by object

Application for trade mark protection after the expiry of copyright

D Backbones of the EEA Agreement

I Homogeneity

Law on the books One way street (E-115 Restamark)

Law in action Going first and judicial dialogue

EEA Agreement as a ldquoliving instrumentrdquo

Vassilios Skouris in 2014

Symbiotic relationship marked by mutual respect and dialogue which has allowed the flow of information in both directions

D Backbones of the EEA Agreement

I Homogeneity

References by AGs GC and ECJ to EFTA Court case law in 126 cases

In 75 cases AGs

In 28 cases ECJ

In 23 cases GC

In total 233 citations by AGs GC and ECJ

D Backbones of the EEA Agreement

I Homogeneity

In 32 cases reference to opinions of AGs by the Court

D Backbones of the EEA Agreement

I Homogeneity

Only court of general jurisdiction whose case law is regularly cited by the ECJ in the context of EU law

References by high courts in Germany the UK Sweden the Netherlands Switzerland Austria

D Backbones of the EEA Agreement

I Homogeneity

Homogeneity as a process not as a snapshot in time (Philipp Speitler Hans Petter Graver)

Former Commission DG and WTO AB Chairman Claus Ehlermann

Healthy (regulatory) competition

But We do not wilfully deviate

D Backbones of the EEA Agreement

I Homogeneity

The role of the ECHR and of the ECtHR

In 11 cases the Court has referred to ECtHR case law (for the first time in 1998)

18 citations

In one case the ECtHR has referred to the Courtrsquos case law (ALIŠIĆ AND OTHERS v BOSNIA AND HERZEGOVINA CROATIA SERBIA SLOVENIA AND THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA Application no 6064208 paragraphs 70-73 94 118)

D Backbones of the EEA Agreement

II Reciprocity

Trade law concept but that is not all

Internal effect of EEA law (no direct effect and no primacy but obligation of result State liability conform interpretation)

Access to justice (preliminary reference procedure)

Independence of judges (Article 30 SCA Order of the President of 20217 in E-2116 Nobile)

Independence of ESA College Members

E Judicial style and underlying philosophy

I General

EFTA Court is an own court of the EFTA States

Matter of sovereignty

Own judges know the legal economic social historic and cultural characteristics of their countries

Independent court (recital 15 preamble EEA Article 106 EEA)

No court of lower instance

Judging is no exact science

E Judicial style and underlying philosophy

II Reasoning (i)

No ldquodecreeingrdquo (size judicial constitution of the EFTA pillar)

No AG

Fact-based approach Court not driven by a grand vision

Dealing with all the arguments

Need to create acceptance

Comprehensive but succinct judgments is the goal

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 5: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

A Introduction

The past 25 years have seen

Four American presidents

The emergence of the internet

Paul Krugman The Internetrsquo s impact on the economy will been no greater than the fax machinersquos

Jerzy Buzek Polish Prime Minister (1997-2001) and President of the European Parliament (2009-12)

ldquoIn the 20th Century each quarter-century ndash 1914 1939 1968 1989 ndash brought Europe to an unpredictable turning pointrdquo

A Introduction

Could anyone have imagined in 1992 that the EEA would still be there in 2017

B Structure and case load

From 7 to 5 to 3 Judges

Since mid-1995 a court of three

lsquoTres faciunt collegiumrsquo (Digest of Justinian)

Minimum number need to operate a court

Compare US Federal Appellate Courts

Compare WTO Appellate Body

Cabinet system (as opposed to a pool system)

Registry

B Structure and case load

285 cases so far

Direct actions 165

References by national courts 120

B Structure and case load

Uncontested infringement cases 77

Contested infringement cases 24

Other direct actions 64

References by Icelandic courts 34

References by Liechtenstein courts 25

References by Norwegian courts 56

Other 5

C Important cases

EFTA Statesrsquo liability for legislative administrative and judicial wrongdoing

Recognition of EEA fundamental rights and of other general principles of EEA law

Modalities of the infringement procedure and the preliminary reference procedure

State monopolies for alcoholic beverages tobacco and gambling

Norwegian advertising ban for alcoholic beverages and Norwegian display ban for tobacco products

C Important cases

Liechtenstein residence requirements

Norwegian reversion system for waterfalls

Transfrontier television

Succession of contracts under the transfer of undertaking rules

Taking a ride with an intoxicated driver

Recognition of the precautionary principle in food law

Taxation of dividends

C Important cases

Relationship between competition law and collective bargainingindustrial action

Repackaging of pharmaceuticals

Compatibility with State aid rules of tax privileges for certain economic actors and State guarantees for publicly owned banks

Sophisticated website as a ldquodurable mediumrdquo

Relevance of ECtHR case law in EEA competition law cases

C Important cases

Public access to documents of ESA (for private parties seeking damages)

Security of costs

Legal consequences of the downfall of the Icelandic banks in 2008

In particular Icesave I

Right of residence and EU Citizenship Directive in an EEA law context

C Important cases

Trade in second-hand life insurance policies

Limits of the application of national CFC rules

Application of EEA competition rules to public bodies

Restriction of competition by object

Application for trade mark protection after the expiry of copyright

D Backbones of the EEA Agreement

I Homogeneity

Law on the books One way street (E-115 Restamark)

Law in action Going first and judicial dialogue

EEA Agreement as a ldquoliving instrumentrdquo

Vassilios Skouris in 2014

Symbiotic relationship marked by mutual respect and dialogue which has allowed the flow of information in both directions

D Backbones of the EEA Agreement

I Homogeneity

References by AGs GC and ECJ to EFTA Court case law in 126 cases

In 75 cases AGs

In 28 cases ECJ

In 23 cases GC

In total 233 citations by AGs GC and ECJ

D Backbones of the EEA Agreement

I Homogeneity

In 32 cases reference to opinions of AGs by the Court

D Backbones of the EEA Agreement

I Homogeneity

Only court of general jurisdiction whose case law is regularly cited by the ECJ in the context of EU law

References by high courts in Germany the UK Sweden the Netherlands Switzerland Austria

D Backbones of the EEA Agreement

I Homogeneity

Homogeneity as a process not as a snapshot in time (Philipp Speitler Hans Petter Graver)

Former Commission DG and WTO AB Chairman Claus Ehlermann

Healthy (regulatory) competition

But We do not wilfully deviate

D Backbones of the EEA Agreement

I Homogeneity

The role of the ECHR and of the ECtHR

In 11 cases the Court has referred to ECtHR case law (for the first time in 1998)

18 citations

In one case the ECtHR has referred to the Courtrsquos case law (ALIŠIĆ AND OTHERS v BOSNIA AND HERZEGOVINA CROATIA SERBIA SLOVENIA AND THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA Application no 6064208 paragraphs 70-73 94 118)

D Backbones of the EEA Agreement

II Reciprocity

Trade law concept but that is not all

Internal effect of EEA law (no direct effect and no primacy but obligation of result State liability conform interpretation)

Access to justice (preliminary reference procedure)

Independence of judges (Article 30 SCA Order of the President of 20217 in E-2116 Nobile)

Independence of ESA College Members

E Judicial style and underlying philosophy

I General

EFTA Court is an own court of the EFTA States

Matter of sovereignty

Own judges know the legal economic social historic and cultural characteristics of their countries

Independent court (recital 15 preamble EEA Article 106 EEA)

No court of lower instance

Judging is no exact science

E Judicial style and underlying philosophy

II Reasoning (i)

No ldquodecreeingrdquo (size judicial constitution of the EFTA pillar)

No AG

Fact-based approach Court not driven by a grand vision

Dealing with all the arguments

Need to create acceptance

Comprehensive but succinct judgments is the goal

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 6: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

A Introduction

Could anyone have imagined in 1992 that the EEA would still be there in 2017

B Structure and case load

From 7 to 5 to 3 Judges

Since mid-1995 a court of three

lsquoTres faciunt collegiumrsquo (Digest of Justinian)

Minimum number need to operate a court

Compare US Federal Appellate Courts

Compare WTO Appellate Body

Cabinet system (as opposed to a pool system)

Registry

B Structure and case load

285 cases so far

Direct actions 165

References by national courts 120

B Structure and case load

Uncontested infringement cases 77

Contested infringement cases 24

Other direct actions 64

References by Icelandic courts 34

References by Liechtenstein courts 25

References by Norwegian courts 56

Other 5

C Important cases

EFTA Statesrsquo liability for legislative administrative and judicial wrongdoing

Recognition of EEA fundamental rights and of other general principles of EEA law

Modalities of the infringement procedure and the preliminary reference procedure

State monopolies for alcoholic beverages tobacco and gambling

Norwegian advertising ban for alcoholic beverages and Norwegian display ban for tobacco products

C Important cases

Liechtenstein residence requirements

Norwegian reversion system for waterfalls

Transfrontier television

Succession of contracts under the transfer of undertaking rules

Taking a ride with an intoxicated driver

Recognition of the precautionary principle in food law

Taxation of dividends

C Important cases

Relationship between competition law and collective bargainingindustrial action

Repackaging of pharmaceuticals

Compatibility with State aid rules of tax privileges for certain economic actors and State guarantees for publicly owned banks

Sophisticated website as a ldquodurable mediumrdquo

Relevance of ECtHR case law in EEA competition law cases

C Important cases

Public access to documents of ESA (for private parties seeking damages)

Security of costs

Legal consequences of the downfall of the Icelandic banks in 2008

In particular Icesave I

Right of residence and EU Citizenship Directive in an EEA law context

C Important cases

Trade in second-hand life insurance policies

Limits of the application of national CFC rules

Application of EEA competition rules to public bodies

Restriction of competition by object

Application for trade mark protection after the expiry of copyright

D Backbones of the EEA Agreement

I Homogeneity

Law on the books One way street (E-115 Restamark)

Law in action Going first and judicial dialogue

EEA Agreement as a ldquoliving instrumentrdquo

Vassilios Skouris in 2014

Symbiotic relationship marked by mutual respect and dialogue which has allowed the flow of information in both directions

D Backbones of the EEA Agreement

I Homogeneity

References by AGs GC and ECJ to EFTA Court case law in 126 cases

In 75 cases AGs

In 28 cases ECJ

In 23 cases GC

In total 233 citations by AGs GC and ECJ

D Backbones of the EEA Agreement

I Homogeneity

In 32 cases reference to opinions of AGs by the Court

D Backbones of the EEA Agreement

I Homogeneity

Only court of general jurisdiction whose case law is regularly cited by the ECJ in the context of EU law

References by high courts in Germany the UK Sweden the Netherlands Switzerland Austria

D Backbones of the EEA Agreement

I Homogeneity

Homogeneity as a process not as a snapshot in time (Philipp Speitler Hans Petter Graver)

Former Commission DG and WTO AB Chairman Claus Ehlermann

Healthy (regulatory) competition

But We do not wilfully deviate

D Backbones of the EEA Agreement

I Homogeneity

The role of the ECHR and of the ECtHR

In 11 cases the Court has referred to ECtHR case law (for the first time in 1998)

18 citations

In one case the ECtHR has referred to the Courtrsquos case law (ALIŠIĆ AND OTHERS v BOSNIA AND HERZEGOVINA CROATIA SERBIA SLOVENIA AND THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA Application no 6064208 paragraphs 70-73 94 118)

D Backbones of the EEA Agreement

II Reciprocity

Trade law concept but that is not all

Internal effect of EEA law (no direct effect and no primacy but obligation of result State liability conform interpretation)

Access to justice (preliminary reference procedure)

Independence of judges (Article 30 SCA Order of the President of 20217 in E-2116 Nobile)

Independence of ESA College Members

E Judicial style and underlying philosophy

I General

EFTA Court is an own court of the EFTA States

Matter of sovereignty

Own judges know the legal economic social historic and cultural characteristics of their countries

Independent court (recital 15 preamble EEA Article 106 EEA)

No court of lower instance

Judging is no exact science

E Judicial style and underlying philosophy

II Reasoning (i)

No ldquodecreeingrdquo (size judicial constitution of the EFTA pillar)

No AG

Fact-based approach Court not driven by a grand vision

Dealing with all the arguments

Need to create acceptance

Comprehensive but succinct judgments is the goal

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 7: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

B Structure and case load

From 7 to 5 to 3 Judges

Since mid-1995 a court of three

lsquoTres faciunt collegiumrsquo (Digest of Justinian)

Minimum number need to operate a court

Compare US Federal Appellate Courts

Compare WTO Appellate Body

Cabinet system (as opposed to a pool system)

Registry

B Structure and case load

285 cases so far

Direct actions 165

References by national courts 120

B Structure and case load

Uncontested infringement cases 77

Contested infringement cases 24

Other direct actions 64

References by Icelandic courts 34

References by Liechtenstein courts 25

References by Norwegian courts 56

Other 5

C Important cases

EFTA Statesrsquo liability for legislative administrative and judicial wrongdoing

Recognition of EEA fundamental rights and of other general principles of EEA law

Modalities of the infringement procedure and the preliminary reference procedure

State monopolies for alcoholic beverages tobacco and gambling

Norwegian advertising ban for alcoholic beverages and Norwegian display ban for tobacco products

C Important cases

Liechtenstein residence requirements

Norwegian reversion system for waterfalls

Transfrontier television

Succession of contracts under the transfer of undertaking rules

Taking a ride with an intoxicated driver

Recognition of the precautionary principle in food law

Taxation of dividends

C Important cases

Relationship between competition law and collective bargainingindustrial action

Repackaging of pharmaceuticals

Compatibility with State aid rules of tax privileges for certain economic actors and State guarantees for publicly owned banks

Sophisticated website as a ldquodurable mediumrdquo

Relevance of ECtHR case law in EEA competition law cases

C Important cases

Public access to documents of ESA (for private parties seeking damages)

Security of costs

Legal consequences of the downfall of the Icelandic banks in 2008

In particular Icesave I

Right of residence and EU Citizenship Directive in an EEA law context

C Important cases

Trade in second-hand life insurance policies

Limits of the application of national CFC rules

Application of EEA competition rules to public bodies

Restriction of competition by object

Application for trade mark protection after the expiry of copyright

D Backbones of the EEA Agreement

I Homogeneity

Law on the books One way street (E-115 Restamark)

Law in action Going first and judicial dialogue

EEA Agreement as a ldquoliving instrumentrdquo

Vassilios Skouris in 2014

Symbiotic relationship marked by mutual respect and dialogue which has allowed the flow of information in both directions

D Backbones of the EEA Agreement

I Homogeneity

References by AGs GC and ECJ to EFTA Court case law in 126 cases

In 75 cases AGs

In 28 cases ECJ

In 23 cases GC

In total 233 citations by AGs GC and ECJ

D Backbones of the EEA Agreement

I Homogeneity

In 32 cases reference to opinions of AGs by the Court

D Backbones of the EEA Agreement

I Homogeneity

Only court of general jurisdiction whose case law is regularly cited by the ECJ in the context of EU law

References by high courts in Germany the UK Sweden the Netherlands Switzerland Austria

D Backbones of the EEA Agreement

I Homogeneity

Homogeneity as a process not as a snapshot in time (Philipp Speitler Hans Petter Graver)

Former Commission DG and WTO AB Chairman Claus Ehlermann

Healthy (regulatory) competition

But We do not wilfully deviate

D Backbones of the EEA Agreement

I Homogeneity

The role of the ECHR and of the ECtHR

In 11 cases the Court has referred to ECtHR case law (for the first time in 1998)

18 citations

In one case the ECtHR has referred to the Courtrsquos case law (ALIŠIĆ AND OTHERS v BOSNIA AND HERZEGOVINA CROATIA SERBIA SLOVENIA AND THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA Application no 6064208 paragraphs 70-73 94 118)

D Backbones of the EEA Agreement

II Reciprocity

Trade law concept but that is not all

Internal effect of EEA law (no direct effect and no primacy but obligation of result State liability conform interpretation)

Access to justice (preliminary reference procedure)

Independence of judges (Article 30 SCA Order of the President of 20217 in E-2116 Nobile)

Independence of ESA College Members

E Judicial style and underlying philosophy

I General

EFTA Court is an own court of the EFTA States

Matter of sovereignty

Own judges know the legal economic social historic and cultural characteristics of their countries

Independent court (recital 15 preamble EEA Article 106 EEA)

No court of lower instance

Judging is no exact science

E Judicial style and underlying philosophy

II Reasoning (i)

No ldquodecreeingrdquo (size judicial constitution of the EFTA pillar)

No AG

Fact-based approach Court not driven by a grand vision

Dealing with all the arguments

Need to create acceptance

Comprehensive but succinct judgments is the goal

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 8: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

B Structure and case load

285 cases so far

Direct actions 165

References by national courts 120

B Structure and case load

Uncontested infringement cases 77

Contested infringement cases 24

Other direct actions 64

References by Icelandic courts 34

References by Liechtenstein courts 25

References by Norwegian courts 56

Other 5

C Important cases

EFTA Statesrsquo liability for legislative administrative and judicial wrongdoing

Recognition of EEA fundamental rights and of other general principles of EEA law

Modalities of the infringement procedure and the preliminary reference procedure

State monopolies for alcoholic beverages tobacco and gambling

Norwegian advertising ban for alcoholic beverages and Norwegian display ban for tobacco products

C Important cases

Liechtenstein residence requirements

Norwegian reversion system for waterfalls

Transfrontier television

Succession of contracts under the transfer of undertaking rules

Taking a ride with an intoxicated driver

Recognition of the precautionary principle in food law

Taxation of dividends

C Important cases

Relationship between competition law and collective bargainingindustrial action

Repackaging of pharmaceuticals

Compatibility with State aid rules of tax privileges for certain economic actors and State guarantees for publicly owned banks

Sophisticated website as a ldquodurable mediumrdquo

Relevance of ECtHR case law in EEA competition law cases

C Important cases

Public access to documents of ESA (for private parties seeking damages)

Security of costs

Legal consequences of the downfall of the Icelandic banks in 2008

In particular Icesave I

Right of residence and EU Citizenship Directive in an EEA law context

C Important cases

Trade in second-hand life insurance policies

Limits of the application of national CFC rules

Application of EEA competition rules to public bodies

Restriction of competition by object

Application for trade mark protection after the expiry of copyright

D Backbones of the EEA Agreement

I Homogeneity

Law on the books One way street (E-115 Restamark)

Law in action Going first and judicial dialogue

EEA Agreement as a ldquoliving instrumentrdquo

Vassilios Skouris in 2014

Symbiotic relationship marked by mutual respect and dialogue which has allowed the flow of information in both directions

D Backbones of the EEA Agreement

I Homogeneity

References by AGs GC and ECJ to EFTA Court case law in 126 cases

In 75 cases AGs

In 28 cases ECJ

In 23 cases GC

In total 233 citations by AGs GC and ECJ

D Backbones of the EEA Agreement

I Homogeneity

In 32 cases reference to opinions of AGs by the Court

D Backbones of the EEA Agreement

I Homogeneity

Only court of general jurisdiction whose case law is regularly cited by the ECJ in the context of EU law

References by high courts in Germany the UK Sweden the Netherlands Switzerland Austria

D Backbones of the EEA Agreement

I Homogeneity

Homogeneity as a process not as a snapshot in time (Philipp Speitler Hans Petter Graver)

Former Commission DG and WTO AB Chairman Claus Ehlermann

Healthy (regulatory) competition

But We do not wilfully deviate

D Backbones of the EEA Agreement

I Homogeneity

The role of the ECHR and of the ECtHR

In 11 cases the Court has referred to ECtHR case law (for the first time in 1998)

18 citations

In one case the ECtHR has referred to the Courtrsquos case law (ALIŠIĆ AND OTHERS v BOSNIA AND HERZEGOVINA CROATIA SERBIA SLOVENIA AND THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA Application no 6064208 paragraphs 70-73 94 118)

D Backbones of the EEA Agreement

II Reciprocity

Trade law concept but that is not all

Internal effect of EEA law (no direct effect and no primacy but obligation of result State liability conform interpretation)

Access to justice (preliminary reference procedure)

Independence of judges (Article 30 SCA Order of the President of 20217 in E-2116 Nobile)

Independence of ESA College Members

E Judicial style and underlying philosophy

I General

EFTA Court is an own court of the EFTA States

Matter of sovereignty

Own judges know the legal economic social historic and cultural characteristics of their countries

Independent court (recital 15 preamble EEA Article 106 EEA)

No court of lower instance

Judging is no exact science

E Judicial style and underlying philosophy

II Reasoning (i)

No ldquodecreeingrdquo (size judicial constitution of the EFTA pillar)

No AG

Fact-based approach Court not driven by a grand vision

Dealing with all the arguments

Need to create acceptance

Comprehensive but succinct judgments is the goal

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 9: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

B Structure and case load

Uncontested infringement cases 77

Contested infringement cases 24

Other direct actions 64

References by Icelandic courts 34

References by Liechtenstein courts 25

References by Norwegian courts 56

Other 5

C Important cases

EFTA Statesrsquo liability for legislative administrative and judicial wrongdoing

Recognition of EEA fundamental rights and of other general principles of EEA law

Modalities of the infringement procedure and the preliminary reference procedure

State monopolies for alcoholic beverages tobacco and gambling

Norwegian advertising ban for alcoholic beverages and Norwegian display ban for tobacco products

C Important cases

Liechtenstein residence requirements

Norwegian reversion system for waterfalls

Transfrontier television

Succession of contracts under the transfer of undertaking rules

Taking a ride with an intoxicated driver

Recognition of the precautionary principle in food law

Taxation of dividends

C Important cases

Relationship between competition law and collective bargainingindustrial action

Repackaging of pharmaceuticals

Compatibility with State aid rules of tax privileges for certain economic actors and State guarantees for publicly owned banks

Sophisticated website as a ldquodurable mediumrdquo

Relevance of ECtHR case law in EEA competition law cases

C Important cases

Public access to documents of ESA (for private parties seeking damages)

Security of costs

Legal consequences of the downfall of the Icelandic banks in 2008

In particular Icesave I

Right of residence and EU Citizenship Directive in an EEA law context

C Important cases

Trade in second-hand life insurance policies

Limits of the application of national CFC rules

Application of EEA competition rules to public bodies

Restriction of competition by object

Application for trade mark protection after the expiry of copyright

D Backbones of the EEA Agreement

I Homogeneity

Law on the books One way street (E-115 Restamark)

Law in action Going first and judicial dialogue

EEA Agreement as a ldquoliving instrumentrdquo

Vassilios Skouris in 2014

Symbiotic relationship marked by mutual respect and dialogue which has allowed the flow of information in both directions

D Backbones of the EEA Agreement

I Homogeneity

References by AGs GC and ECJ to EFTA Court case law in 126 cases

In 75 cases AGs

In 28 cases ECJ

In 23 cases GC

In total 233 citations by AGs GC and ECJ

D Backbones of the EEA Agreement

I Homogeneity

In 32 cases reference to opinions of AGs by the Court

D Backbones of the EEA Agreement

I Homogeneity

Only court of general jurisdiction whose case law is regularly cited by the ECJ in the context of EU law

References by high courts in Germany the UK Sweden the Netherlands Switzerland Austria

D Backbones of the EEA Agreement

I Homogeneity

Homogeneity as a process not as a snapshot in time (Philipp Speitler Hans Petter Graver)

Former Commission DG and WTO AB Chairman Claus Ehlermann

Healthy (regulatory) competition

But We do not wilfully deviate

D Backbones of the EEA Agreement

I Homogeneity

The role of the ECHR and of the ECtHR

In 11 cases the Court has referred to ECtHR case law (for the first time in 1998)

18 citations

In one case the ECtHR has referred to the Courtrsquos case law (ALIŠIĆ AND OTHERS v BOSNIA AND HERZEGOVINA CROATIA SERBIA SLOVENIA AND THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA Application no 6064208 paragraphs 70-73 94 118)

D Backbones of the EEA Agreement

II Reciprocity

Trade law concept but that is not all

Internal effect of EEA law (no direct effect and no primacy but obligation of result State liability conform interpretation)

Access to justice (preliminary reference procedure)

Independence of judges (Article 30 SCA Order of the President of 20217 in E-2116 Nobile)

Independence of ESA College Members

E Judicial style and underlying philosophy

I General

EFTA Court is an own court of the EFTA States

Matter of sovereignty

Own judges know the legal economic social historic and cultural characteristics of their countries

Independent court (recital 15 preamble EEA Article 106 EEA)

No court of lower instance

Judging is no exact science

E Judicial style and underlying philosophy

II Reasoning (i)

No ldquodecreeingrdquo (size judicial constitution of the EFTA pillar)

No AG

Fact-based approach Court not driven by a grand vision

Dealing with all the arguments

Need to create acceptance

Comprehensive but succinct judgments is the goal

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 10: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

C Important cases

EFTA Statesrsquo liability for legislative administrative and judicial wrongdoing

Recognition of EEA fundamental rights and of other general principles of EEA law

Modalities of the infringement procedure and the preliminary reference procedure

State monopolies for alcoholic beverages tobacco and gambling

Norwegian advertising ban for alcoholic beverages and Norwegian display ban for tobacco products

C Important cases

Liechtenstein residence requirements

Norwegian reversion system for waterfalls

Transfrontier television

Succession of contracts under the transfer of undertaking rules

Taking a ride with an intoxicated driver

Recognition of the precautionary principle in food law

Taxation of dividends

C Important cases

Relationship between competition law and collective bargainingindustrial action

Repackaging of pharmaceuticals

Compatibility with State aid rules of tax privileges for certain economic actors and State guarantees for publicly owned banks

Sophisticated website as a ldquodurable mediumrdquo

Relevance of ECtHR case law in EEA competition law cases

C Important cases

Public access to documents of ESA (for private parties seeking damages)

Security of costs

Legal consequences of the downfall of the Icelandic banks in 2008

In particular Icesave I

Right of residence and EU Citizenship Directive in an EEA law context

C Important cases

Trade in second-hand life insurance policies

Limits of the application of national CFC rules

Application of EEA competition rules to public bodies

Restriction of competition by object

Application for trade mark protection after the expiry of copyright

D Backbones of the EEA Agreement

I Homogeneity

Law on the books One way street (E-115 Restamark)

Law in action Going first and judicial dialogue

EEA Agreement as a ldquoliving instrumentrdquo

Vassilios Skouris in 2014

Symbiotic relationship marked by mutual respect and dialogue which has allowed the flow of information in both directions

D Backbones of the EEA Agreement

I Homogeneity

References by AGs GC and ECJ to EFTA Court case law in 126 cases

In 75 cases AGs

In 28 cases ECJ

In 23 cases GC

In total 233 citations by AGs GC and ECJ

D Backbones of the EEA Agreement

I Homogeneity

In 32 cases reference to opinions of AGs by the Court

D Backbones of the EEA Agreement

I Homogeneity

Only court of general jurisdiction whose case law is regularly cited by the ECJ in the context of EU law

References by high courts in Germany the UK Sweden the Netherlands Switzerland Austria

D Backbones of the EEA Agreement

I Homogeneity

Homogeneity as a process not as a snapshot in time (Philipp Speitler Hans Petter Graver)

Former Commission DG and WTO AB Chairman Claus Ehlermann

Healthy (regulatory) competition

But We do not wilfully deviate

D Backbones of the EEA Agreement

I Homogeneity

The role of the ECHR and of the ECtHR

In 11 cases the Court has referred to ECtHR case law (for the first time in 1998)

18 citations

In one case the ECtHR has referred to the Courtrsquos case law (ALIŠIĆ AND OTHERS v BOSNIA AND HERZEGOVINA CROATIA SERBIA SLOVENIA AND THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA Application no 6064208 paragraphs 70-73 94 118)

D Backbones of the EEA Agreement

II Reciprocity

Trade law concept but that is not all

Internal effect of EEA law (no direct effect and no primacy but obligation of result State liability conform interpretation)

Access to justice (preliminary reference procedure)

Independence of judges (Article 30 SCA Order of the President of 20217 in E-2116 Nobile)

Independence of ESA College Members

E Judicial style and underlying philosophy

I General

EFTA Court is an own court of the EFTA States

Matter of sovereignty

Own judges know the legal economic social historic and cultural characteristics of their countries

Independent court (recital 15 preamble EEA Article 106 EEA)

No court of lower instance

Judging is no exact science

E Judicial style and underlying philosophy

II Reasoning (i)

No ldquodecreeingrdquo (size judicial constitution of the EFTA pillar)

No AG

Fact-based approach Court not driven by a grand vision

Dealing with all the arguments

Need to create acceptance

Comprehensive but succinct judgments is the goal

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 11: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

C Important cases

Liechtenstein residence requirements

Norwegian reversion system for waterfalls

Transfrontier television

Succession of contracts under the transfer of undertaking rules

Taking a ride with an intoxicated driver

Recognition of the precautionary principle in food law

Taxation of dividends

C Important cases

Relationship between competition law and collective bargainingindustrial action

Repackaging of pharmaceuticals

Compatibility with State aid rules of tax privileges for certain economic actors and State guarantees for publicly owned banks

Sophisticated website as a ldquodurable mediumrdquo

Relevance of ECtHR case law in EEA competition law cases

C Important cases

Public access to documents of ESA (for private parties seeking damages)

Security of costs

Legal consequences of the downfall of the Icelandic banks in 2008

In particular Icesave I

Right of residence and EU Citizenship Directive in an EEA law context

C Important cases

Trade in second-hand life insurance policies

Limits of the application of national CFC rules

Application of EEA competition rules to public bodies

Restriction of competition by object

Application for trade mark protection after the expiry of copyright

D Backbones of the EEA Agreement

I Homogeneity

Law on the books One way street (E-115 Restamark)

Law in action Going first and judicial dialogue

EEA Agreement as a ldquoliving instrumentrdquo

Vassilios Skouris in 2014

Symbiotic relationship marked by mutual respect and dialogue which has allowed the flow of information in both directions

D Backbones of the EEA Agreement

I Homogeneity

References by AGs GC and ECJ to EFTA Court case law in 126 cases

In 75 cases AGs

In 28 cases ECJ

In 23 cases GC

In total 233 citations by AGs GC and ECJ

D Backbones of the EEA Agreement

I Homogeneity

In 32 cases reference to opinions of AGs by the Court

D Backbones of the EEA Agreement

I Homogeneity

Only court of general jurisdiction whose case law is regularly cited by the ECJ in the context of EU law

References by high courts in Germany the UK Sweden the Netherlands Switzerland Austria

D Backbones of the EEA Agreement

I Homogeneity

Homogeneity as a process not as a snapshot in time (Philipp Speitler Hans Petter Graver)

Former Commission DG and WTO AB Chairman Claus Ehlermann

Healthy (regulatory) competition

But We do not wilfully deviate

D Backbones of the EEA Agreement

I Homogeneity

The role of the ECHR and of the ECtHR

In 11 cases the Court has referred to ECtHR case law (for the first time in 1998)

18 citations

In one case the ECtHR has referred to the Courtrsquos case law (ALIŠIĆ AND OTHERS v BOSNIA AND HERZEGOVINA CROATIA SERBIA SLOVENIA AND THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA Application no 6064208 paragraphs 70-73 94 118)

D Backbones of the EEA Agreement

II Reciprocity

Trade law concept but that is not all

Internal effect of EEA law (no direct effect and no primacy but obligation of result State liability conform interpretation)

Access to justice (preliminary reference procedure)

Independence of judges (Article 30 SCA Order of the President of 20217 in E-2116 Nobile)

Independence of ESA College Members

E Judicial style and underlying philosophy

I General

EFTA Court is an own court of the EFTA States

Matter of sovereignty

Own judges know the legal economic social historic and cultural characteristics of their countries

Independent court (recital 15 preamble EEA Article 106 EEA)

No court of lower instance

Judging is no exact science

E Judicial style and underlying philosophy

II Reasoning (i)

No ldquodecreeingrdquo (size judicial constitution of the EFTA pillar)

No AG

Fact-based approach Court not driven by a grand vision

Dealing with all the arguments

Need to create acceptance

Comprehensive but succinct judgments is the goal

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 12: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

C Important cases

Relationship between competition law and collective bargainingindustrial action

Repackaging of pharmaceuticals

Compatibility with State aid rules of tax privileges for certain economic actors and State guarantees for publicly owned banks

Sophisticated website as a ldquodurable mediumrdquo

Relevance of ECtHR case law in EEA competition law cases

C Important cases

Public access to documents of ESA (for private parties seeking damages)

Security of costs

Legal consequences of the downfall of the Icelandic banks in 2008

In particular Icesave I

Right of residence and EU Citizenship Directive in an EEA law context

C Important cases

Trade in second-hand life insurance policies

Limits of the application of national CFC rules

Application of EEA competition rules to public bodies

Restriction of competition by object

Application for trade mark protection after the expiry of copyright

D Backbones of the EEA Agreement

I Homogeneity

Law on the books One way street (E-115 Restamark)

Law in action Going first and judicial dialogue

EEA Agreement as a ldquoliving instrumentrdquo

Vassilios Skouris in 2014

Symbiotic relationship marked by mutual respect and dialogue which has allowed the flow of information in both directions

D Backbones of the EEA Agreement

I Homogeneity

References by AGs GC and ECJ to EFTA Court case law in 126 cases

In 75 cases AGs

In 28 cases ECJ

In 23 cases GC

In total 233 citations by AGs GC and ECJ

D Backbones of the EEA Agreement

I Homogeneity

In 32 cases reference to opinions of AGs by the Court

D Backbones of the EEA Agreement

I Homogeneity

Only court of general jurisdiction whose case law is regularly cited by the ECJ in the context of EU law

References by high courts in Germany the UK Sweden the Netherlands Switzerland Austria

D Backbones of the EEA Agreement

I Homogeneity

Homogeneity as a process not as a snapshot in time (Philipp Speitler Hans Petter Graver)

Former Commission DG and WTO AB Chairman Claus Ehlermann

Healthy (regulatory) competition

But We do not wilfully deviate

D Backbones of the EEA Agreement

I Homogeneity

The role of the ECHR and of the ECtHR

In 11 cases the Court has referred to ECtHR case law (for the first time in 1998)

18 citations

In one case the ECtHR has referred to the Courtrsquos case law (ALIŠIĆ AND OTHERS v BOSNIA AND HERZEGOVINA CROATIA SERBIA SLOVENIA AND THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA Application no 6064208 paragraphs 70-73 94 118)

D Backbones of the EEA Agreement

II Reciprocity

Trade law concept but that is not all

Internal effect of EEA law (no direct effect and no primacy but obligation of result State liability conform interpretation)

Access to justice (preliminary reference procedure)

Independence of judges (Article 30 SCA Order of the President of 20217 in E-2116 Nobile)

Independence of ESA College Members

E Judicial style and underlying philosophy

I General

EFTA Court is an own court of the EFTA States

Matter of sovereignty

Own judges know the legal economic social historic and cultural characteristics of their countries

Independent court (recital 15 preamble EEA Article 106 EEA)

No court of lower instance

Judging is no exact science

E Judicial style and underlying philosophy

II Reasoning (i)

No ldquodecreeingrdquo (size judicial constitution of the EFTA pillar)

No AG

Fact-based approach Court not driven by a grand vision

Dealing with all the arguments

Need to create acceptance

Comprehensive but succinct judgments is the goal

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 13: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

C Important cases

Public access to documents of ESA (for private parties seeking damages)

Security of costs

Legal consequences of the downfall of the Icelandic banks in 2008

In particular Icesave I

Right of residence and EU Citizenship Directive in an EEA law context

C Important cases

Trade in second-hand life insurance policies

Limits of the application of national CFC rules

Application of EEA competition rules to public bodies

Restriction of competition by object

Application for trade mark protection after the expiry of copyright

D Backbones of the EEA Agreement

I Homogeneity

Law on the books One way street (E-115 Restamark)

Law in action Going first and judicial dialogue

EEA Agreement as a ldquoliving instrumentrdquo

Vassilios Skouris in 2014

Symbiotic relationship marked by mutual respect and dialogue which has allowed the flow of information in both directions

D Backbones of the EEA Agreement

I Homogeneity

References by AGs GC and ECJ to EFTA Court case law in 126 cases

In 75 cases AGs

In 28 cases ECJ

In 23 cases GC

In total 233 citations by AGs GC and ECJ

D Backbones of the EEA Agreement

I Homogeneity

In 32 cases reference to opinions of AGs by the Court

D Backbones of the EEA Agreement

I Homogeneity

Only court of general jurisdiction whose case law is regularly cited by the ECJ in the context of EU law

References by high courts in Germany the UK Sweden the Netherlands Switzerland Austria

D Backbones of the EEA Agreement

I Homogeneity

Homogeneity as a process not as a snapshot in time (Philipp Speitler Hans Petter Graver)

Former Commission DG and WTO AB Chairman Claus Ehlermann

Healthy (regulatory) competition

But We do not wilfully deviate

D Backbones of the EEA Agreement

I Homogeneity

The role of the ECHR and of the ECtHR

In 11 cases the Court has referred to ECtHR case law (for the first time in 1998)

18 citations

In one case the ECtHR has referred to the Courtrsquos case law (ALIŠIĆ AND OTHERS v BOSNIA AND HERZEGOVINA CROATIA SERBIA SLOVENIA AND THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA Application no 6064208 paragraphs 70-73 94 118)

D Backbones of the EEA Agreement

II Reciprocity

Trade law concept but that is not all

Internal effect of EEA law (no direct effect and no primacy but obligation of result State liability conform interpretation)

Access to justice (preliminary reference procedure)

Independence of judges (Article 30 SCA Order of the President of 20217 in E-2116 Nobile)

Independence of ESA College Members

E Judicial style and underlying philosophy

I General

EFTA Court is an own court of the EFTA States

Matter of sovereignty

Own judges know the legal economic social historic and cultural characteristics of their countries

Independent court (recital 15 preamble EEA Article 106 EEA)

No court of lower instance

Judging is no exact science

E Judicial style and underlying philosophy

II Reasoning (i)

No ldquodecreeingrdquo (size judicial constitution of the EFTA pillar)

No AG

Fact-based approach Court not driven by a grand vision

Dealing with all the arguments

Need to create acceptance

Comprehensive but succinct judgments is the goal

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 14: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

C Important cases

Trade in second-hand life insurance policies

Limits of the application of national CFC rules

Application of EEA competition rules to public bodies

Restriction of competition by object

Application for trade mark protection after the expiry of copyright

D Backbones of the EEA Agreement

I Homogeneity

Law on the books One way street (E-115 Restamark)

Law in action Going first and judicial dialogue

EEA Agreement as a ldquoliving instrumentrdquo

Vassilios Skouris in 2014

Symbiotic relationship marked by mutual respect and dialogue which has allowed the flow of information in both directions

D Backbones of the EEA Agreement

I Homogeneity

References by AGs GC and ECJ to EFTA Court case law in 126 cases

In 75 cases AGs

In 28 cases ECJ

In 23 cases GC

In total 233 citations by AGs GC and ECJ

D Backbones of the EEA Agreement

I Homogeneity

In 32 cases reference to opinions of AGs by the Court

D Backbones of the EEA Agreement

I Homogeneity

Only court of general jurisdiction whose case law is regularly cited by the ECJ in the context of EU law

References by high courts in Germany the UK Sweden the Netherlands Switzerland Austria

D Backbones of the EEA Agreement

I Homogeneity

Homogeneity as a process not as a snapshot in time (Philipp Speitler Hans Petter Graver)

Former Commission DG and WTO AB Chairman Claus Ehlermann

Healthy (regulatory) competition

But We do not wilfully deviate

D Backbones of the EEA Agreement

I Homogeneity

The role of the ECHR and of the ECtHR

In 11 cases the Court has referred to ECtHR case law (for the first time in 1998)

18 citations

In one case the ECtHR has referred to the Courtrsquos case law (ALIŠIĆ AND OTHERS v BOSNIA AND HERZEGOVINA CROATIA SERBIA SLOVENIA AND THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA Application no 6064208 paragraphs 70-73 94 118)

D Backbones of the EEA Agreement

II Reciprocity

Trade law concept but that is not all

Internal effect of EEA law (no direct effect and no primacy but obligation of result State liability conform interpretation)

Access to justice (preliminary reference procedure)

Independence of judges (Article 30 SCA Order of the President of 20217 in E-2116 Nobile)

Independence of ESA College Members

E Judicial style and underlying philosophy

I General

EFTA Court is an own court of the EFTA States

Matter of sovereignty

Own judges know the legal economic social historic and cultural characteristics of their countries

Independent court (recital 15 preamble EEA Article 106 EEA)

No court of lower instance

Judging is no exact science

E Judicial style and underlying philosophy

II Reasoning (i)

No ldquodecreeingrdquo (size judicial constitution of the EFTA pillar)

No AG

Fact-based approach Court not driven by a grand vision

Dealing with all the arguments

Need to create acceptance

Comprehensive but succinct judgments is the goal

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 15: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

D Backbones of the EEA Agreement

I Homogeneity

Law on the books One way street (E-115 Restamark)

Law in action Going first and judicial dialogue

EEA Agreement as a ldquoliving instrumentrdquo

Vassilios Skouris in 2014

Symbiotic relationship marked by mutual respect and dialogue which has allowed the flow of information in both directions

D Backbones of the EEA Agreement

I Homogeneity

References by AGs GC and ECJ to EFTA Court case law in 126 cases

In 75 cases AGs

In 28 cases ECJ

In 23 cases GC

In total 233 citations by AGs GC and ECJ

D Backbones of the EEA Agreement

I Homogeneity

In 32 cases reference to opinions of AGs by the Court

D Backbones of the EEA Agreement

I Homogeneity

Only court of general jurisdiction whose case law is regularly cited by the ECJ in the context of EU law

References by high courts in Germany the UK Sweden the Netherlands Switzerland Austria

D Backbones of the EEA Agreement

I Homogeneity

Homogeneity as a process not as a snapshot in time (Philipp Speitler Hans Petter Graver)

Former Commission DG and WTO AB Chairman Claus Ehlermann

Healthy (regulatory) competition

But We do not wilfully deviate

D Backbones of the EEA Agreement

I Homogeneity

The role of the ECHR and of the ECtHR

In 11 cases the Court has referred to ECtHR case law (for the first time in 1998)

18 citations

In one case the ECtHR has referred to the Courtrsquos case law (ALIŠIĆ AND OTHERS v BOSNIA AND HERZEGOVINA CROATIA SERBIA SLOVENIA AND THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA Application no 6064208 paragraphs 70-73 94 118)

D Backbones of the EEA Agreement

II Reciprocity

Trade law concept but that is not all

Internal effect of EEA law (no direct effect and no primacy but obligation of result State liability conform interpretation)

Access to justice (preliminary reference procedure)

Independence of judges (Article 30 SCA Order of the President of 20217 in E-2116 Nobile)

Independence of ESA College Members

E Judicial style and underlying philosophy

I General

EFTA Court is an own court of the EFTA States

Matter of sovereignty

Own judges know the legal economic social historic and cultural characteristics of their countries

Independent court (recital 15 preamble EEA Article 106 EEA)

No court of lower instance

Judging is no exact science

E Judicial style and underlying philosophy

II Reasoning (i)

No ldquodecreeingrdquo (size judicial constitution of the EFTA pillar)

No AG

Fact-based approach Court not driven by a grand vision

Dealing with all the arguments

Need to create acceptance

Comprehensive but succinct judgments is the goal

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 16: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

D Backbones of the EEA Agreement

I Homogeneity

References by AGs GC and ECJ to EFTA Court case law in 126 cases

In 75 cases AGs

In 28 cases ECJ

In 23 cases GC

In total 233 citations by AGs GC and ECJ

D Backbones of the EEA Agreement

I Homogeneity

In 32 cases reference to opinions of AGs by the Court

D Backbones of the EEA Agreement

I Homogeneity

Only court of general jurisdiction whose case law is regularly cited by the ECJ in the context of EU law

References by high courts in Germany the UK Sweden the Netherlands Switzerland Austria

D Backbones of the EEA Agreement

I Homogeneity

Homogeneity as a process not as a snapshot in time (Philipp Speitler Hans Petter Graver)

Former Commission DG and WTO AB Chairman Claus Ehlermann

Healthy (regulatory) competition

But We do not wilfully deviate

D Backbones of the EEA Agreement

I Homogeneity

The role of the ECHR and of the ECtHR

In 11 cases the Court has referred to ECtHR case law (for the first time in 1998)

18 citations

In one case the ECtHR has referred to the Courtrsquos case law (ALIŠIĆ AND OTHERS v BOSNIA AND HERZEGOVINA CROATIA SERBIA SLOVENIA AND THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA Application no 6064208 paragraphs 70-73 94 118)

D Backbones of the EEA Agreement

II Reciprocity

Trade law concept but that is not all

Internal effect of EEA law (no direct effect and no primacy but obligation of result State liability conform interpretation)

Access to justice (preliminary reference procedure)

Independence of judges (Article 30 SCA Order of the President of 20217 in E-2116 Nobile)

Independence of ESA College Members

E Judicial style and underlying philosophy

I General

EFTA Court is an own court of the EFTA States

Matter of sovereignty

Own judges know the legal economic social historic and cultural characteristics of their countries

Independent court (recital 15 preamble EEA Article 106 EEA)

No court of lower instance

Judging is no exact science

E Judicial style and underlying philosophy

II Reasoning (i)

No ldquodecreeingrdquo (size judicial constitution of the EFTA pillar)

No AG

Fact-based approach Court not driven by a grand vision

Dealing with all the arguments

Need to create acceptance

Comprehensive but succinct judgments is the goal

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 17: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

D Backbones of the EEA Agreement

I Homogeneity

In 32 cases reference to opinions of AGs by the Court

D Backbones of the EEA Agreement

I Homogeneity

Only court of general jurisdiction whose case law is regularly cited by the ECJ in the context of EU law

References by high courts in Germany the UK Sweden the Netherlands Switzerland Austria

D Backbones of the EEA Agreement

I Homogeneity

Homogeneity as a process not as a snapshot in time (Philipp Speitler Hans Petter Graver)

Former Commission DG and WTO AB Chairman Claus Ehlermann

Healthy (regulatory) competition

But We do not wilfully deviate

D Backbones of the EEA Agreement

I Homogeneity

The role of the ECHR and of the ECtHR

In 11 cases the Court has referred to ECtHR case law (for the first time in 1998)

18 citations

In one case the ECtHR has referred to the Courtrsquos case law (ALIŠIĆ AND OTHERS v BOSNIA AND HERZEGOVINA CROATIA SERBIA SLOVENIA AND THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA Application no 6064208 paragraphs 70-73 94 118)

D Backbones of the EEA Agreement

II Reciprocity

Trade law concept but that is not all

Internal effect of EEA law (no direct effect and no primacy but obligation of result State liability conform interpretation)

Access to justice (preliminary reference procedure)

Independence of judges (Article 30 SCA Order of the President of 20217 in E-2116 Nobile)

Independence of ESA College Members

E Judicial style and underlying philosophy

I General

EFTA Court is an own court of the EFTA States

Matter of sovereignty

Own judges know the legal economic social historic and cultural characteristics of their countries

Independent court (recital 15 preamble EEA Article 106 EEA)

No court of lower instance

Judging is no exact science

E Judicial style and underlying philosophy

II Reasoning (i)

No ldquodecreeingrdquo (size judicial constitution of the EFTA pillar)

No AG

Fact-based approach Court not driven by a grand vision

Dealing with all the arguments

Need to create acceptance

Comprehensive but succinct judgments is the goal

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 18: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

D Backbones of the EEA Agreement

I Homogeneity

Only court of general jurisdiction whose case law is regularly cited by the ECJ in the context of EU law

References by high courts in Germany the UK Sweden the Netherlands Switzerland Austria

D Backbones of the EEA Agreement

I Homogeneity

Homogeneity as a process not as a snapshot in time (Philipp Speitler Hans Petter Graver)

Former Commission DG and WTO AB Chairman Claus Ehlermann

Healthy (regulatory) competition

But We do not wilfully deviate

D Backbones of the EEA Agreement

I Homogeneity

The role of the ECHR and of the ECtHR

In 11 cases the Court has referred to ECtHR case law (for the first time in 1998)

18 citations

In one case the ECtHR has referred to the Courtrsquos case law (ALIŠIĆ AND OTHERS v BOSNIA AND HERZEGOVINA CROATIA SERBIA SLOVENIA AND THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA Application no 6064208 paragraphs 70-73 94 118)

D Backbones of the EEA Agreement

II Reciprocity

Trade law concept but that is not all

Internal effect of EEA law (no direct effect and no primacy but obligation of result State liability conform interpretation)

Access to justice (preliminary reference procedure)

Independence of judges (Article 30 SCA Order of the President of 20217 in E-2116 Nobile)

Independence of ESA College Members

E Judicial style and underlying philosophy

I General

EFTA Court is an own court of the EFTA States

Matter of sovereignty

Own judges know the legal economic social historic and cultural characteristics of their countries

Independent court (recital 15 preamble EEA Article 106 EEA)

No court of lower instance

Judging is no exact science

E Judicial style and underlying philosophy

II Reasoning (i)

No ldquodecreeingrdquo (size judicial constitution of the EFTA pillar)

No AG

Fact-based approach Court not driven by a grand vision

Dealing with all the arguments

Need to create acceptance

Comprehensive but succinct judgments is the goal

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 19: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

D Backbones of the EEA Agreement

I Homogeneity

Homogeneity as a process not as a snapshot in time (Philipp Speitler Hans Petter Graver)

Former Commission DG and WTO AB Chairman Claus Ehlermann

Healthy (regulatory) competition

But We do not wilfully deviate

D Backbones of the EEA Agreement

I Homogeneity

The role of the ECHR and of the ECtHR

In 11 cases the Court has referred to ECtHR case law (for the first time in 1998)

18 citations

In one case the ECtHR has referred to the Courtrsquos case law (ALIŠIĆ AND OTHERS v BOSNIA AND HERZEGOVINA CROATIA SERBIA SLOVENIA AND THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA Application no 6064208 paragraphs 70-73 94 118)

D Backbones of the EEA Agreement

II Reciprocity

Trade law concept but that is not all

Internal effect of EEA law (no direct effect and no primacy but obligation of result State liability conform interpretation)

Access to justice (preliminary reference procedure)

Independence of judges (Article 30 SCA Order of the President of 20217 in E-2116 Nobile)

Independence of ESA College Members

E Judicial style and underlying philosophy

I General

EFTA Court is an own court of the EFTA States

Matter of sovereignty

Own judges know the legal economic social historic and cultural characteristics of their countries

Independent court (recital 15 preamble EEA Article 106 EEA)

No court of lower instance

Judging is no exact science

E Judicial style and underlying philosophy

II Reasoning (i)

No ldquodecreeingrdquo (size judicial constitution of the EFTA pillar)

No AG

Fact-based approach Court not driven by a grand vision

Dealing with all the arguments

Need to create acceptance

Comprehensive but succinct judgments is the goal

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 20: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

D Backbones of the EEA Agreement

I Homogeneity

The role of the ECHR and of the ECtHR

In 11 cases the Court has referred to ECtHR case law (for the first time in 1998)

18 citations

In one case the ECtHR has referred to the Courtrsquos case law (ALIŠIĆ AND OTHERS v BOSNIA AND HERZEGOVINA CROATIA SERBIA SLOVENIA AND THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA Application no 6064208 paragraphs 70-73 94 118)

D Backbones of the EEA Agreement

II Reciprocity

Trade law concept but that is not all

Internal effect of EEA law (no direct effect and no primacy but obligation of result State liability conform interpretation)

Access to justice (preliminary reference procedure)

Independence of judges (Article 30 SCA Order of the President of 20217 in E-2116 Nobile)

Independence of ESA College Members

E Judicial style and underlying philosophy

I General

EFTA Court is an own court of the EFTA States

Matter of sovereignty

Own judges know the legal economic social historic and cultural characteristics of their countries

Independent court (recital 15 preamble EEA Article 106 EEA)

No court of lower instance

Judging is no exact science

E Judicial style and underlying philosophy

II Reasoning (i)

No ldquodecreeingrdquo (size judicial constitution of the EFTA pillar)

No AG

Fact-based approach Court not driven by a grand vision

Dealing with all the arguments

Need to create acceptance

Comprehensive but succinct judgments is the goal

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 21: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

D Backbones of the EEA Agreement

II Reciprocity

Trade law concept but that is not all

Internal effect of EEA law (no direct effect and no primacy but obligation of result State liability conform interpretation)

Access to justice (preliminary reference procedure)

Independence of judges (Article 30 SCA Order of the President of 20217 in E-2116 Nobile)

Independence of ESA College Members

E Judicial style and underlying philosophy

I General

EFTA Court is an own court of the EFTA States

Matter of sovereignty

Own judges know the legal economic social historic and cultural characteristics of their countries

Independent court (recital 15 preamble EEA Article 106 EEA)

No court of lower instance

Judging is no exact science

E Judicial style and underlying philosophy

II Reasoning (i)

No ldquodecreeingrdquo (size judicial constitution of the EFTA pillar)

No AG

Fact-based approach Court not driven by a grand vision

Dealing with all the arguments

Need to create acceptance

Comprehensive but succinct judgments is the goal

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 22: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

E Judicial style and underlying philosophy

I General

EFTA Court is an own court of the EFTA States

Matter of sovereignty

Own judges know the legal economic social historic and cultural characteristics of their countries

Independent court (recital 15 preamble EEA Article 106 EEA)

No court of lower instance

Judging is no exact science

E Judicial style and underlying philosophy

II Reasoning (i)

No ldquodecreeingrdquo (size judicial constitution of the EFTA pillar)

No AG

Fact-based approach Court not driven by a grand vision

Dealing with all the arguments

Need to create acceptance

Comprehensive but succinct judgments is the goal

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 23: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

E Judicial style and underlying philosophy

II Reasoning (i)

No ldquodecreeingrdquo (size judicial constitution of the EFTA pillar)

No AG

Fact-based approach Court not driven by a grand vision

Dealing with all the arguments

Need to create acceptance

Comprehensive but succinct judgments is the goal

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 24: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

E Judicial style and underlying philosophy

II Reasoning (ii)

Making a virtue out of necessity

Style has an impact on content

Comments of ECJ and GC colleagues (for example Gulmann Jacobs van der Woude)

Comments of Commission officials

Comments of prominent EU writers

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 25: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

E Judicial style and underlying philosophy

III No French rucksack

Reluctance to rely on assumptions presumptions and fictions They can lead to unjust results

Effects-based approach

Scandinavian-alemannian pragmatism (Tyrolians may be more romantic but when it comes to that they are with us)

Karl Kraus ldquoLanguage is the mother of thought not its handmaidenrdquo

Common law influence

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 26: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

E Judicial style and underlying philosophy

IV Economics and image of man

In competition law Harvard vs Chicago

Not only in competition law in economic law in general

EEA law is single market law is economic law

It deals with the relationship between economic freedom and regulation

Degree of protection for consumers and workers

Principle of liability

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 27: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

E Judicial style and underlying philosophy

V Examples

E-497 Husbanken E-1510 Norway Post

No leeway no margin of discretion for ESA in complex economic assessment

E-813 Abelia

Right of audience of in-house counsel assessment on a case by case basis

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 28: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

E Judicial style and underlying philosophy

V Examples

E-800 LO and E-1415 Holship

Aggregate effect of clauses in a collective agreement

ldquo[I]t is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract It must rather be assessed if the measure at issue genuinely aims at the protection of workersrdquo

E-409 Inconsult

In the internet age a consumer can be expected to download or print out content from the website of a financial service provider

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 29: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

E Judicial style and underlying philosophy

V Examples

E-1515 and 1615 Swiss Life and Vienna Life

Trade in used life insurances policies is investment not consumer business

E-515 Matja Kumba

In special circumstances workers may be allowed to work long hours

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 30: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

E Judicial style and underlying philosophy

V Examples

Icesave I

Statutory interpretation

Deposit Guarantee Directive did not envisage an obligation of result to ensure payment to depositors in the Landsbanki branches in the Netherlands and the United Kingdom by the government in a systemic crisis of the magnitude in Iceland

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl

Page 31: The EFTA Court in it’s 24 Year · The EFTA Court in it’s 24th Year ... Succession of contracts under the transfer of undertaking ... In 11 cases the Court has referred to ECtHR

E Judicial style and underlying philosophy

V Examples

Icesave I

Economic considerations

Recital 16 in the preamble to the Directive No level ofprotection which might encourage unsound managementof credit institutions

This points to the concept of moral hazard

Reference to Nobel laureate Joseph Stiglitz

Later cited by AGrsquos Mengozzi and Wahl